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HomeMy WebLinkAboutPolicy 235 – Consular NotificationOSHKOSH POLICE DEPARTMENT POLICIES AND PROCEDURES TITLE: Consular Notification POLICY SERIES: 235 Effective Date: 9-9-2018 Date Issued: 8-24-2018 Chief of Police: Dean Smith (signature on file) Date Signed: 8-24-2018 Statutory References: U.S. Department of State -Bureau of Consular Affairs CALEA Standard: 1.1.4, 61.1.3 Final Review Completed: 8-24-2018 Review By: Command Staff / PSD Lieutenant Rescinds Policy Dated: N/A SECTION DESCRIPTION 235.01 Policy 235.02 Purpose 235.03 Procedures 235.04 Supervisor Notification and Documentation 142.01 POLICY Upon arrest, foreign nationals, regardless of immigration status, will have the right to notify their consular officials without delay. Under international treaties and domestic law, foreign diplomats are entitled to certain immunities from legal jurisdiction in the United States. All foreign diplomats will be offered immunity privileges set forth in this policy and applicable treaties. 142.02 PURPOSE To establish guidelines, procedures and reporting requirements for the arrest and detention of foreign nationals, foreign diplomats, and Consular Officers in accordance with international treaties and domestic law. 142.03 DEFINITIONS A. Foreign National: A "foreign national" is any person who is not a U.S. citizen. All foreign nationals are entitled to consular notification and access, regardless of their visa or immigration status in the United States. Therefore, resident aliens, who have a resident alien registration card, "green card", and illegal or undocumented "aliens" will be offered the same rights to consular assistance. B. Consular Officer: A "consular officer" is a citizen of a foreign country employed by a foreign government and authorized to provide assistance on behalf of that government to that government's citizens in a foreign country. C. Foreign Diplomat: A "foreign diplomat" is a foreign government representative or employee who works for that government in the United States. D. Diplomatic Immunity: A requirement by international law under which certain foreign government officials are not subject to the jurisdiction of local courts and authorities, for both their official and, to a large extent, their personal activities. 142.03 PROCEDURE A. The following procedure will be used when a foreign national is arrested or detained. 1. Foreign nationals' citizenship should be determined and they may be identified by passport, travel documents, diplomatic cards and/or verbally. 2. When foreign nationals are arrested or detained, they will be advised of the right to have their consular officials notified without delay. A brief traffic stop or accident investigation where a foreign national received a warning or citation does not require consular notification. An "In Custody" arrest for charges other than traffic will invoke a right to consular notification. A list of Foreign Embassies and Consulates in the United States can be found at: http://travel.state.gov/CNA 3. If the foreign national's citizenship is from a "Mandatory Notification Country", consular officials must be notified of the foreign national's arrest or detention, regardless of the foreign national's wishes. This notification must be made within 72-hours after an initial arrest. A listing of "Mandatory Notification Countries" can be found at: https://travel. state. gov/content/travel/en/consularnotification/QuarantinedF ore ignNationals/countries-and-jurisdictions-with-mandatory-notifications.html 4. Foreign nationals detained at hospitals or admitted to a mental health facility under Chapter 51.15 will be advised of their right to consular notification. 5. Foreign nationals should be read their Miranda Warnings and may be questioned provided they waive their rights. They may be questioned prior to consular notification unless they request that their consular be notified first. 6. Consular officials are entitled access to their nationals in detention, and are entitled to provide consular assistance. 7. Consular officials shall be notified as soon as possible if there is a death or serious injury of a foreign national, foreign nationals are known or believed to be involved in a plane crash. 8. In the event of appointment of guardianship or trusteeship for minors and adult foreign nationals consular notification shall be made. B. The following procedures will be used when any foreign diplomat or consular official is detained. 1. Foreign diplomats and consular officials may be entitled to immunities from legal jurisdiction and prosecution in the United States. A foreign diplomat or consular official should possess a color -coded identification card issued by the Department of State indicating the position held and the level of immunity entitled. The level of immunity is explained on the back of the card. 2. Because of immunity privileges, foreign diplomats and consular officials will generally not be arrested or handcuffed, nor will they be detained any longer than necessary to investigate the incident. 3. Foreign diplomats and consular officials are not subject to searches of their residence, automobile or any other property of the individual. However, immunity privileges will not take precedence over the safety of officers or others. 4. Foreign diplomats and consular officials who become violent may be restrained. Officers may use force that is reasonably necessary to control the situation. 5. Investigating officers shall call the U.S. Department of State's Office of Protocol to verify identification and determine level of diplomatic immunity of a foreign diplomat or consular official (202-647-1985 during business hours, 202-647-7277 after business hours). 6. Foreign diplomats and consular officials may be issued traffic citations. In OWI cases, they may be asked to perform field sobriety tests, but are not required to submit to the tests. If the foreign diplomat is deemed to be driving while impaired, he/she may be prevented from driving, but will not be arrested or transported to the police department for the offense. 7. Department of State officials will be notified as soon as possible of an incident involving a foreign diplomat or consular official. All copies of police reports and citations will be forwarded to the Department of State by the investigating officer (Fax number 202-895-3613) who will handle matters through diplomatic channels. 235.04 SUPERVISOR NOTIFICATION AND DOCUMENTATION Officers shall notify a supervisor if arresting a foreign national, and/or when having police contact with a foreign diplomat or consular official. The supervisor shall notify their bureau captain as soon as practicable. Any consular notifications or notifications to the U.S State Department shall be documented in a police report.